impeachment

Posted by David Adelsteinon January 29, 2017Evidence, Trial Perspectives /
Comments Off on Impeachment as to Prior Crimes in Civil Trials

In a civil trial, I want to attack (impeach) the credibility of a testifying witness by bringing up a crime that witness committed. Can I do this?

When it comes to impeaching the credibility of a witness based on crimes, Florida Statute s. 90.610 states in material part:

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.

So, in a criminal trial, a witness’s credibility can be attacked if (1) the witness was convicted of a crime in excess of one year (a felony) or (2) the witness was convicted of a crime involving dishonesty or a false statement regardless of the length of punishment (a misdemeanor involving dishonesty or a false statement). But, in a civil trial, not so fast – this type of impeachment will not be permitted if the conviction is remote in time that it has no bearing on the character of the witness. If the crime is so remote in time, there is no probative value to impeach the witness other than the prejudicial effect the knowledge of the crime may have with the jury. See, e.g., Trowell v. J.C. Penny Co., Inc., 813 So.2d 1042 (Fla. 4th DCA 2002) (“The statute directs the court to determine whether the past convictions have a bearing on the present character of the witness. Evidence of theft and shoplifting convictions in the early 1980s with no subsequent convictions would tend to suggest that the witness no longer has a propensity toward dishonesty, and thus such convictions would have little or no bearing on his present character. Evidence of a continuing pattern of theft convictions tends to suggest that the appellant’s character in this regard remains unchanged.”).

The objective in attacking a witness’s credibility based on a crime (as permitted above) is that the witness cannot be trusted—their testimony is nothing but a bunch of lies.

The procedure to attack a witness’s credibility based on a crime is quite simple. The witness will be asked whether he/she has ever been convicted of a felony or convicted of a misdemeanor crime involving dishonesty. If the witness says yes, the next question will be to ask the witness how many times has he/she been convicted of such crimes. The lawyer impeaching the witness will already know the answer to these questions. What if the witness lies? If the witness lies or gives a misleading answer, the lawyer can impeach that testimony by introducing a certified copy of the judgment of conviction for each crime (which is usually a judgment of the conviction and the sentence). This allows the lawyer to prove that the witness has been convicted of a particular crime, however, the lawyer cannot go into the nitty gritty about the crime(s). See Porter v. State, 593 So.2d 1158, 1159 (Fla. 2d DCA 1992).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon August 20, 2016Trial Perspectives /
Comments Off on Foundation Required to Admit Prior Inconsistent Statement

One of the most effective impeachment vehicles to attack the credibility of a testifying witness is the prior inconsistent statement. A prior inconsistent statement is exactly what it seems – a statement previously made by the witness on a material issue that directly contradicts with what the witness is testifying to at trial. The point of impeaching the witness with the prior inconsistent statement is to show the witness’ trial testimony is not credible—they are lying. By attacking the credibility, you leave doubts in the trier of fact’s mind (e.g., jury) that the witness’ trial testimony needs to be discounted because of a material lie (either they were lying at trial or they were lying when they originally made the prior inconsistent statement).

However, the foundation needs to be properly laid in order to impeach the witness with the prior inconsistent statement.

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

If the witness admits making the prior inconsistent statement, then the matter is generally closed since the witness admitted the inconsistency. On the other hand, if the witness does not admit or recall making the prior inconsistent statement, then extrinsic evidence of the prior inconsistent statement is admissible to prove the witness made such statement. See MBL Life Assurance Corp. v. Saurez, 768 So.2d 1129, 1134 (Fla. 3d DCA 2000) (“When a witness states that she does not recall questions asked or answers given at a previous time, the law provides that extrinsic evidence of the prior statement is admissible.”).

For example, say a witness previously testified during a deposition that her company decided not to fulfill certain contractual obligations because it underestimated its bid and contract price and would have lost a tremendous amount of money if it fulfilled its contractual obligations. But, during trial, the same witness testified that her company did not perform under the contract because the other side refused to timely pay a certain amount of money. This is a material contradiction. During cross-examination, the opposing lawyer is very interested in attacking that witness’ credibility with the earlier statement made during deposition. How does the opposing lawyer lay a foundation?

First, the opposing lawyer will ask the witness if she remembers being deposed (on “X” date by “Y” person) where she was asked the following question and where she answered “that her company did not perform because it underestimated its bid and would have lost tons of money.” If the witness admits to making the prior inconsistent statement, they have the opportunity to try to explain the inconsistency and the opposing lawyer can cross-examine the witness on the admitted inconsistency. However, if the witness denies making the statement or does not recall, then the foundation was laid to admit the prior inconsistent statement.

If the prior inconsistent statement is not reliable (unlike a statement in a deposition, affidavit, official public document, or other self-authenticating / reliable document) then it may be necessary to call as a witness a person that heard the prior inconsistent statement–depends on how the prior inconsistent statement was made and memorialized. See, e.g., Pearce v. State, 880 So.2d 561, 568-570 (Fla. 2004) (when witness testified he did not recall making prior inconsistent statement after proper foundation was laid, trial court erred by not allowing counsel to immediately show videotape of witness making prior inconsistent statement); MBL Life Assurance Corp., 768 So.2d 1129 (trial court erred by not allowing witness’ prior inconsistent statement to Coast Guard contained in Coast Guard’s report to be admitted when witness testified she did not recall making prior statement); Kiwanis Club of Little Havana, Inc. v. Kalafe, 723 So.2d 838 (Fla. 3d DCA 1998) (trial court erred in not allowing counsel to introduce periodical articles to impeach witness’ trial court testimony that contained statements contradictory to witness’ trial court testimony).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon July 05, 2015Trial Perspectives /
Comments Off on Impeaching (Attacking Witness’s Credibility) with a Prior Inconsistent Statement

Impeachment is the art of attacking a testifying witness’s credibility or truthfulness at trial. One of the most common forms of impeachment during cross-examination at trial is with a prior inconsistent statement, such as deposition or affidavit testimony. The objective of impeachment is to establish that the witness is not a trustworthy witness, hence the reason it is referred to as attacking the witness’s credibility! A prior inconsistent statement made by a testifying witness is a great way to attack that witness’s credibility at trial. See Elmer v. State, 114 So.3d 198, 202 (Fla. 5th DCA 2012). (“It is axiomatic and fundamental to our system of justice that a party may impeach a witness by introducing statements of the witness which are inconsistent with the witness’s present testimony.”).

Under Florida Statute s. 90.608, “Any party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness’s present testimony.” Thus, you can attack a testifying witness’s testimony with a prior inconsistent statement.

Furthermore, Florida Statute s. 90.614(2) states in material part: “(2) Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.”

“In order to lay the proper predicate for impeachment by prior inconsistent statement, the witness must be advised of the substance of the prior inconsistent statement, the time and place the statement was made, and the person to whom the statement was made.” See Kimble v. State, 537 So.2d 1094, 1096 (Fla. 2d DCA 1989).

If a witness admits that he/she made the prior statement, then counsel may not introduce that prior inconsistent statement. There is no reason to do so as the witness has acknowledged the prior inconsistent statement and the impeachment point has been made.

On the other hand, if the witness denies making that statement or does not directly admit making that statement, then counsel may introduce that prior written statement.

“[I]ntroduction of a prior statement that is inconsistent with a witness’s present testimony is also one of the main ways to attack the credibility of a witness….The theory of admissibility is not that the prior statement is true and the in-court testimony is false, but that because the witness has not told the truth in one of the statements, the jury should disbelieve both statements. To be inconsistent, a prior statement must either directly contradict or be materially different from the expected testimony at trial. The inconsistency must involve a material, significant fact rather than mere details. ‘Nit-picking’ is not permitted under the guise of prior inconsistent statements. If a witness has made a prior inconsistent statement concerning a collateral matter, cross-examining counsel may question the witness about the statement, but must ‘take the answer’ and cannot present extrinsic evidence to prove the prior inconsistent statement.

Before a witness can be impeached with a prior inconsistent statement, the proper foundation must be laid. Prior to questioning a witness about the contents of a previous inconsistent statement, counsel must call to the witness’s attention the time, place, and person to whom the statement was allegedly made. Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it…. If the witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

Thus, if the witness admits making the prior statement, examining counsel may not offer any evidence to prove the statement was made. Further, even if the witness admits making a prior statement, the witness should be given an opportunity to explain it, show that he or she was mistaken when it was made, or explain that the prior statement is not inconsistent.

Under section 90.614(2), extrinsic evidence is admissible when a witness does not ‘distinctly admit’ making the prior statement. If the witness does not distinctly admit making a prior statement, then when it is counsel’s turn to offer evidence, he or she may introduce extrinsic evidence that the statement was made. This evidence can include a properly authenticated written statement and the testimony of individuals who were present when the statement was made.”

Finally, if a witness does not recall making a prior inconsistent statement, while the statement may be inadmissible hearsay, it can be shown to the witness to refresh that witness’s memory. Thus, if the witness recalls making the prior inconsistent statement after seeing the prior inconsistent statement in order to refresh his/her memory, the witness can testify as to that statement. On the other hand, if the witness still does not recall, then the line of questions to that witness generally ends.

Check out the youtube vides above and below that contain good information and demonstration of impeachment by a prior inconsistent statement.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon March 12, 2015Evidence /
Comments Off on Inadmissible Subsequent Remedial Measures

Sometimes plaintiffs try to introduce evidence of subsequent remedial measures a defendant undertook after a defective condition caused an injury or damage to prove the existence of the defective condition and the culpability of the defendant. In other words, the plaintiff wants to show that if the remedial measure was performed to the defective condition prior to the injury or damage the injury or damage would probably not have occurred. This evidence of subsequent remedial measures is not admissible subject to an impeachment exception (where the evidence is not admitted as substantive evidence but to impeach a witness).

To this point, Florida Statute s. 90.407 provides:

Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.

For example, in Harris v. Florida Power & Light Co., 700 So.2d 1240 (Fla. 3d DCA 1997), a person died from being electrocuted from an uninsulated power line. The plaintiff argued that overgrown trees had been pushed into the power line by a crane causing electrical current to run from the trees to the crane and then to the truck the deceased was leaning against. Upon learning of the accident, FP&L had the overgrown trees located at the accident scene trimmed. At trial, the plaintiff argued that FP&L was required to cut trees away from the power line which FP&L disputed. FP&L contended that the deceased was electrocuted when the crane came into contact with the power line that caused the electrical current to travel from the crane to the truck that the deceased was leaning against. During trial, the plaintiff tried to introduce evidence of FP&L cutting the overgrown trees immediately after the accident. The trial court correctly deemed this evidence as an inadmissible subsequent remedial measure that the plaintiff only wanted to introduce in order to prove that FP&L was negligent by not trimming the trees sooner.

Conversely, in Daharan Well Texaco Oil Co. v. McFadden, 717 So.2d 162 (Fla. 3d DCA 1998), the defendant in a slip and fall lawsuit appealed because the trial judge deemed admissible a photograph of the slip and fall location after the plaintiff’s fall. The defendant argued that the photograph should have been deemed inadmissible because it depicted a subsequent remedial measure. The appellate court affirmed the trial court finding that the photograph was properly admissible under the impeachment evidence exception to subsequent remedial measures. See, e.g., Morowitz v. Vistaview Apartments, Ltd., 613 So.2d 493 (Fla. 3d DCA 1993) (newsletter distributed to tenants that said don’t get on elevators in wet bathing suits as floors are slippery after a slip and fall accident at apartment building should have been admissible impeachment evidence to impeach defendant’s employees that said they were unaware of notices given to tenants of slippery floors).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.